Decision No. 61-AT-A-2008

February 15, 2008

APPLICATION by the Estate of Eric Norman, Joanne Neubauer and the Council of Canadians with Disabilities for an award of costs.

File No. U 3570-14/04-1

APPLICATION

[1] The Estate of Eric Norman, Joanne Neubauer and the Council of Canadians with Disabilities (the applicants) filed submissions with the Canadian Transportation Agency (the Agency) pursuant to section 25.1 of the Canada Transportation Act, S.C., 1996, c. 10, as amended (the CTA) in support of an application for an award of costs relating to their participation in the proceeding leading to Decision No. 6-AT-A-2008 (the Decision).

BACKGROUND

[2] The Agency issued the Decision on January 10, 2008 wherein it found that both the airport improvement fee policy of the Gander International Airport Authority (GIAA) and the fare policies of Air Canada, Jazz Air LP, as represented by its general partner, Jazz Air Holding GP Inc. carrying on business as Air Canada Jazz, and WestJet (the carrier respondents) related to domestic air services constitute undue obstacles to persons who require additional seating to accommodate their disabilities to travel by air. The Agency ordered GIAA and the carrier respondents to amend their current policies and procedures to incorporate a one person-one fare regime by implementing various systemic corrective measures.

[3] The application raised complex issues and the proceeding was unusually lengthy. Extensive expert evidence was filed and the Agency held a two-stage oral hearing. The applicants made several requested interim orders for costs at various stages of the proceeding, but the Agency advised the parties that it would consider costs at the end of the proceeding.

[4] The applicants and the carrier respondents have reached an agreement that the applicants are entitled to an award of costs against the carrier respondents without prejudice to the carrier respondents' right to seek leave to appeal the Decision. These parties continue to negotiate on the amount of costs. The applicants requested the Agency to direct that costs be assessed on a solicitor-and-client basis.

ISSUE

[5] Should the Agency award costs to the applicants and, if so, direct that costs be assessed on a solicitor-and-client basis?

ANALYSIS AND FINDINGS

[6] The Agency is satisfied with the agreement of the parties that the applicants are entitled to have their costs in the matter paid by the carrier respondents. The Agency agrees with this position.

[7] Accordingly, the Agency finds it appropriate to appoint a taxing officer who will conduct pleadings to gather information, including the applicants' bill of costs, on the issue of the amount of costs to be awarded. At the completion of pleadings and upon receipt of all the necessary documentation, the taxing officer will make a determination as to the amount to be paid to the applicants.

[8] Additionally, counsel for the applicants is seeking direction from the Agency on the principles to be applied to the matter of costs so that the parties can resolve the remaining issues. Counsel for the applicants states that where a clear public interest can be demonstrated, the Agency has been prepared to depart from the usual assumption that costs are to be awarded on a party-and-party basis and make costs payable on a solicitor-and-client basis.

[9] The Agency has full discretion to award costs on either a solicitor-and-client basis or in accordance with a tariff. However, the Agency finds it unnecessary to give specific directions to the taxing officer on the nature of the costs to be awarded to the applicants. Historically, taxing officers have relied on general principles when determining the basis for an award of costs. These principles include that costs be compensatory in nature and reflect the costs that the party actually incurred in the proceeding that are reasonable, direct and necessary to the proceeding.

[10] The Agency finds that an award of costs should not be made against GIAA as the issues related to the airport improvement fee were determined based on written pleadings alone and were not of the same complexity as the other issues considered in the Decision.

CONCLUSION

[11] The Agency awards costs to the applicants and, pursuant to subsection 25.1(3) of the CTA, appoints Beaton Tulk as the taxing officer to determine the costs to be taxed and allowed, which shall be paid by the carrier respondents.

Members

• Gilles Dufault
• Beaton Tulk